Nonoriginalism strikes back. That’s the message conveyed by three articles recently posted to SSRN: my own “Rebooting Originalism,” Mitchell Berman’s “Originalism is Bunk” and Thomas Colby and Peter Smith’s “Originalism’s Living Constitution.” All three articles are critiques of contemporary originalism and can be viewed as defenses of nonoriginalism (although this is a term I disclaim). Given this diversity of criticism, one can only hope for some cogent originalist response. But are there any points common to all three articles, any agreement on lines of critique? I think so.

To summarize the articles in an extremely brief compass: I argue that contemporary originalism advances a radical doctrine without justification, although masquerading as the status quo and that it cannot be squared with historicism, the need to take account of historical context and the reality of informal constitutional change. Berman argues that the position that originalism is necessarily true is flawed and the arguments for originalism based on a pragmatic appeal to consequences are weak. Colby and Smith argue that recent originalist theories are such a moving target that they lack a common core (a summary I borrow from Larry Solum’s recent useful post). Originalism has disappeared as a coherent doctrine as different schools of originalist thought have put out bids for supremacy.All fine, but what are the main issues going forward? One point of contention has emerged clearly. I agree with Berman that any meaningful form of nonoriginalism must assert “that facts that occur after ratification or amendment can properly bear – constitutively, not just evidentially – on how courts should interpret the Constitution (even when the original meaning is sufficiently clear).” I’m quoting Berman, but the same position is identified by Solum as a true alternative to originalism – “Yet others might contend that the semantic content was not fixed by facts in existence at time of drafting and ratification, but can be changed by subsequent events.” The originalists I have met regard this as impossible, illegitimate, or both. How could subsequent events not themselves amendments legitimately and legally change the meaning of the Constitution? Of course, nonoriginalists have often seen this as a descriptive reality, regardless of what our normative position on constitutional interpretation may be. In any case, I spend some time in my article explaining how this is both normatively plausible and desirable, as well as descriptively accurate. But it is a key issue.A second point of contention is highlighted by Colby and Smith’s article. What is the relationship of the newer forms of originalism (especially the “original public meaning” and “reasonable person in the eighteenth century” variants) to constitutional practice? Have these variants ever been used to decide a case (especially in a way different from the traditional “intentionalist” variant)? If they are new proposals, how can they claim the authority of law? Is it not becoming apparent that while these new variants may address theoretical difficulties they are not connected with the practice of constitutional law? (And is it not clear that some of these new variants lie behind some of the more aggressive assertions of executive power by the Bush administration?)And a word in passing about the newest variant, the “reasonable person.” Once we sever entirely the connection between “originalism” and historical intention understood as a matter of fact and interpretation does that not make it much easier for the interpreter (let’s say a judge) to arrange historical facts to suit? The interpreter becomes the reasonable person, as it were. Doesn’t that strike people as equivalent to the widely discredited view that originalism is best carried out by imagining what a founder (say Madison) would say about a given practice in constitutional question if he were carried forward into the present? Many scholars have argued that this view makes it too easy for us to pretend we are Madison and so lose the advantage of perspective and constraint on judgment that originalism was supposed to provide. But isn’t this argumentative move reenacted exactly by the reasonable person variant? And in the process, isn’t it all too easy to sever the connection entirely with the eighteenth century?I think that’s enough rhetorical questions for one night. But as Solum points out, the Colby and Smith article will serve a valuable function if only by forcing originalists to realize that the tendency of legal scholars to make yet another fine distinction has gotten somewhat out of hand when it comes to the elaboration of originalist theories.

As you suggest, once we go beyond what those at the time actually thought about and anticipated (which covers little that happens today), original meaning theory is largely a license to fill in the blanks--although it constrains in the minimal sense that one must come up with some history and a plausible argument about how that translates into modern circumstances. It's an elaborate exercise, to be sure.

I've had a chance to read all three and they all raise significant challenges to originalism.

One of my biggest questions that Profs. Griffin and Berman raise (esp. Griffin) is how, exactly, do Os deal with the intervening constitutional history that has plainly changed the Constitution's meaning. IOW, isn't it inevitable that the Constitution's meaning *will* change? (I think the social movement scholarship is esp. instructive here).

Os keep repeating that their theory is the predominant one, the one most faithful to the Constitution. But simply repeating something doesn't make it so.

"One of my biggest questions that Profs. Griffin and Berman raise (esp. Griffin) is how, exactly, do Os deal with the intervening constitutional history that has plainly changed the Constitution's meaning."

Quite easily. They refer to such history as "ratified amendments".

A theory of physics is refuted by any event contrary to it. A theory of law simply views events contrary to it as "crimes". It is implicit in the notion of 'law' that some people will violate it.

The reciprocal challenge for non-originalist theories is to explain how a law (That's what the Constitution is, after all, the law that binds government, as statutes bind the citizenry.) which is 'changed' to comport with practice any time practice disagrees with it, can be considered to be law at all.

@Stephen: Great post, for which I'm quite thankful. The only bit that is missing, to my jaundiced eye, is the perhaps less academic, more pragmatic argument that when someone like Scalia calls himself an "Originalist" there's really very little substance to the claim, but, rather, the claim is made for the social approval it garners. It's a rhetorical game, not a logic or academic endeavor. And so, it seems to me, academic replies miss the point, at least in part.

@Brett: The Homonymy. - This trick is to extend a proposition to something which has little or nothing in common with the matter in question but the similarity of the word; then to refute it triumphantly, and so claim credit for having refuted the original statement. When you can demonstrate understanding of the difference between a statute controlling a specific behavior as contrasted with a set of rules for the just governance of a nation then you might convince someone you are competent to address the topic.

@Brian: First, as I said to Stephen in my earlier comment, isn't a fair amount of the "originalism" dust-up really just rhetorical posturing on the part of folks like Scalia? Wouldn't that account for how, as Stephen puts it, Originalism has disappeared as a coherent doctrine as different schools of originalist thought have put out bids for supremacy," because it's been less a matter of different schools putting out bids for supremacy than it has been a matter of vocal judges polishing themselves with Originalism(tm) to add a little lustre to their position with almost no thought for anything as lofty as a coherent and academically viable theory of originalism? I can't help feeling if I was just a shade more skilled and dedicated a researcher I could support that point from Scalia's dissents alone.

Second, I seem to recall a claim that at least one thread of opposition to the original Bill of Rights was that by enumerating and explicating those rights we would see a movement to limit the full fund of rights originally intended under the main body of the Constitution. Is that correct? If so, could you drop me a name or hint at a good google search for follow-up?

Originalists began with a simple theme of “original intent.” But whose “intent”? Founders? Ratifiers? Measured quantitatively or qualitatively? It was only in the latter part of the 20th century that the flaws of “original intent” were convincingly exposed. Then the theme was “original meaning.” That of the Founders? Ratifiers? Free white males over 21 (or the “reasonable” free white male over 21) back then? Dictionary definitions, contexts of contemporaneous writings of those “original” times? When “original meaning” was critiqued, then it was a matter of “original understanding” which some nuanced to differ from “original meaning.” But whose “understanding”? This too was critiqued and there arose “original expectations” (or “anticipations”) of the “original cast” from those “original” times. The originalists’ menu continues to expand with the “original du jour” whatever constitutional scholars come up with. What started off as simple has become complex.

Granted, more and more writings from such “original” times surface and/or are reconsidered to support various originalist menu items, sometimes (perhaps too often) in a selective manner. But do originalists today have stronger arguments for originalism than in earlier periods closer to “original” times?

“KEEP IT SIMPLE, STUPID” may serve many topics well, but has it worked with constitutional scholarship? (Perhaps Prof. Tribe made the right decision regarding his treatise.)

I thought of comparing the efforts of constitutional scholars in their search for the holy grail of originalism with those of particle physicists seeking to understand the basic parts of matter going back to the beginning of time/BIG BANG (whichever came first). Physicists at least employ methods to test their hypotheses. But constitutional scholars have not yet divined objectively proving what may have been in the minds of the “original” cast. A quark compared to a quack?

It's always struck me that the three main arguments lodged by Os in support of O -- determinacy, objectivity and legitimacy (popular sovereignty) -- plainly favor something like the opposite view: The contemporary meaning of a constitutional term will be at least as determinate as the original (i.e., centuries-old) meaning; the contemporary meaning of a constitutional term will be at least as objective (i.e., independent of the preferences of judges); and, at least, if legitimacy requires the consent of the governed, contemporary meaning -- the words as those governed now understand them -- should probably be preferred over the words as understood by a centuries-dead polity (in a slogan: Whereas They were the People, We are the People).

I seem to recall a claim that at least one thread of opposition to the original Bill of Rights was that by enumerating and explicating those rights we would see a movement to limit the full fund of rights originally intended under the main body of the Constitution. Is that correct? If so, could you drop me a name or hint at a good google search for follow-up?

Yes, that's correct. Madison expressed that concern in his speech introducing the BoR on June 8, 1789:

"It has been objected also against a bill of rights that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication that those rights which were not singled out were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the [9th Amendment]."

One of my biggest questions that Profs. Griffin and Berman raise (esp. Griffin) is how, exactly, do Os deal with the intervening constitutional history that has plainly changed the Constitution's meaning.

The Supreme Court reverses it.

To head off the inevitable reply, it is not at all activist to reverse erroneous prior opinions to return the original meaning to the Constitution.

IOW, isn't it inevitable that the Constitution's meaning *will* change?

Yes. The question is by whom - the elected representatives of the People through the amendment process or five unelected justices by judicial fiat?

Leaving aside its applicability to constitutional law, Bart doesn't even state contract law correctly.

First, parol evidence, in practice, is usually admissible, because even seemingly clear terms can be ambiguous in particular circumstances.

Second, subsequent circumstances are admissible to establish the meaning of a contract. In fact, the actions of the parties to the contract after its execution are considered by most courts to be among the most reliable indicia of the meaning of a contract, on the principle that "actions speak louder than words". Plus, contracts can be reformed and covenants implied to deal with unforeseen circumstances or to save the contract from an interpretation that would render it null or meaningless.

If the Constitution were interpreted like a contract, the "living Constitution" theory wouldn't even be controversial.

I am glad to see that originalism is finally under serious attack -- I wonder what took so long. Originalism needs to be recognized for what it is, a very pernicious form of judicial activism. Originalists have gone so far as to put words in the mouths of the Founders.

IMO the poster child for the evils of originalism is Judge Jones' infamous commencement speech at Dickinson College, in which he showed extreme prejudice against the Dover defendants -- regardless of whether or not Intelligent Design is a religious concept -- by saying that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Ironically, he gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto "religion and learning, the bulwark of liberty" in Latin.

Judge Jones was supposed to be neutral towards organized religions and he was not. By no stretch of the imagination are his above statements neutral towards organized religions.

In interpreting the establishment clause, originalists have portrayed the Founders as being everything from a bunch of blasphemous bible-burning atheists to a bunch of bible-pounding holy-rolling fundies. Also, originalists have been conveniently ignoring the religious views of a very important Founder, George Washington -- see this and this.

The Federalist Society does not officially say that it is originalist but I strongly suspect that it is. It is named for the USA's first political party and the society's logo is a silhouette of James Madison. The question of Chief Justice John Roberts' membership in the society was an issue in his confirmation hearings.

Sometimes a broad non-originalist interpretation of the Constitution is necessary. For example, the Constitution does not generally prohibit states from interfering with interstate commerce, so the courts invented what is called the "dormant" commerce clause. Also, many big issues today were not even on the radar screens of the Founders -- e.g., environmental protection and freedom of speech on the Intenet.

Leaving aside its applicability to constitutional law, Bart doesn't even state contract law correctly.

First, parol evidence, in practice, is usually admissible, because even seemingly clear terms can be ambiguous in particular circumstances.

In which jurisdiction do you practice? The hornbook parole evidence presumes that the written contract embodies the whole agreement between the parties. The states in which I have practiced all followed this rule.

In any case, I would suggest that the hornbook parole evidence rule should apply here.

Second, subsequent circumstances are admissible to establish the meaning of a contract.

Under limited circumstances, this is correct.

However, the parties to the Constitution - the government and the people - have not acted to modify the Constitution outside of the amendments they enacted over the years. Interpretations by the Courts rewriting the Constitution are not subsequent acts by the parties.

If the Constitution were interpreted like a contract, the "living Constitution" theory wouldn't even be controversial.

How so?

The living Constitution theory allows courts (but not the elected branches) to rewrite the Constitution as they please to implement their own personal policy beliefs.

No legitimate theory of contract law allows a court this kind of power to rewrite contracts to suit their own viewpoints.

Calvin: One of my biggest questions that Profs. Griffin and Berman raise (esp. Griffin) is how, exactly, do Os deal with the intervening constitutional history that has plainly changed the Constitution's meaning. IOW, isn't it inevitable that the Constitution's meaning *will* change? (I think the social movement scholarship is esp. instructive here).

fwiw, I think the responses of Brett and Bart really show up the in-aptness of the question. Why should KKKarl Rove or Newt or Nino get to define such a sexy term so that only their partisans qualify? It's on a par with Bart's laughable, "...it is not at all activist to reverse erroneous prior opinions..." in which activist can only be pejorative, so it can only rightly be ascribed to his ideological opponents. (That one was almost as good as his nonsense about contracts.) If your interpretation is aimed at i) forming a more perfect union, ii) establishing justice, iii) ensuring domestic tranquility, or iv) providing for the common defense, then your's is an Originalist interpretation. Put differently "Originalist" as used by folks like Scalia rests on liberals accepting a "No True Scotsman" fallacy foist upon them (i.e., "your Originalism isn't _true_ originalism...because it doesn't yeild the result the GOP dictates.)

Again and again it seems to me the biggest mistake liberals make in dealing with conservatives is taking conservative rhetoric and treating it as legitimate discourse rather than derisively howling it down as the self-serving disingenuous nonsense it so often is.

Bart: Brett's assinine comments, and subsequent spakning, about the conflation of various words all spelled l-a-w apply with equal or greater force to your farcical discussion of contracts. TOAC 2 (supra) all over again, so, again, come back when you can plausibly demonstrate an understanding of the differences between a simple agreement which the courts will enforce as contrasted with the complex set of relationships which Locke, et al, rather metaphorically called The Social Contract", at which point you might be deemed competent to have an opinion.

In which jurisdiction do you practice? The hornbook parole evidence presumes that the written contract embodies the whole agreement between the parties. The states in which I have practiced all followed this rule.

First, it's parol evidence, not parole.

Second, even hornbook law doesn't say what you say it says. Hornbook law certainly holds that a total integration, i.e., a writing which is intended by the parties to express their full agreement, cannot be varied by reference to parol evidence. But: (1) many written agreements are not total integrations; (2) lots of evidence is admitted on the ground that it doesn't vary the terms; and (3) the parol evidence rule has no application when there is an ambiguity, including one that is disclosed by the parol evidence itself!

(I practice in Californa, by the way. See Pacific Gas & Electric v. G.W. Thomas Drayage & Rigging for a discussion of this.)

Under limited circumstances, this is correct.

However, the parties to the Constitution - the government and the people - have not acted to modify the Constitution outside of the amendments they enacted over the years. Interpretations by the Courts rewriting the Constitution are not subsequent acts by the parties.

As far as contract law was concerned, you are completely wrong about this. In fact, under Crestview Cemetery v. Deiden and other cases, the subsequent conduct of the parties is always admissible, even when the agreement is not ambiguous on its face and is a total integration, and is considered the best evidence of the parties' intention.

As for your argument that court interpretations aren't subsequent acts of the parties, you are the one who made the contract analogy in the first instance, Bart. This is nothing more than you backpedaling when someone pointed out that it doesn't really support your argument.

The living Constitution theory allows courts (but not the elected branches) to rewrite the Constitution as they please to implement their own personal policy beliefs.

Part of the problem here is that many conservatives may be arguing against a characature (albeit a not entirely inaccurate one) of the living Constitution theory. The actual theory is not that judges can make up whatever they want and insert it into the Constitution. Rather, the theory is that the Constitution sets forth principles, such as due process, no cruel and unusual punishment, the zones of privacy created by the Fourth Amendment, etc., and that courts have the power to apply those principles to modern factual situations taking into account our experience in the over 200 years since the Constitution was adopted and the modern needs and realities and expectations of government and the populace.

Put that way, I would suggest to you that the living Constitution theory IS a lot like practical construction arguments (i.e., interpretation based on subsequent events) in contract law.

Oh, God, I feel so chastised. How could I possibly, in the act of complaining about a double standard, forget that "law" means one thing when applied to use peons, and something different, and vastly more flexible, when applied to our lords and masters?

What was I thinking?

Maybe I was thinking that this sophisticated notion of multiple types of laws is a crock. And that a government that won't be bound by law has no claim to so bind it's citizens.

Maybe I think that the legal fraternity ought to think twice about it's project of completely severing the Constitution from those dead words the people read in their civics classes, lest when the separation is complete, they find that they've delegitimized the government, and not the written constitution.

Maybe it's not that I don't see your point, so much as that I see through it.

It is silly and not a little immature to think that one can "spank" someone or "win" in an internet debate.

Moreover, you might want to read and understand the argument and logical fallacies which you are using as a crutch to avoid addressing arguments. You are misapplying half of them, making you look even sillier.

Finally, the social contract theory is a philosophical argument that a nation's government and people have implied duties to one another. This is not a true contract. There are no parties or bargain. This is more of a natural law argument.

The Constitution is very much a contract between the people and their government. The government drafted and offered the Constitution and the People accepted it through a supermajority of their elected representatives. The Constitution imposes rights and duties on both parties which were bargained over in extensive debate.

I did not offer a social contract argument to justify my treatment of the Constitution as a contract. That is your misrepresentation of my argument. Since you are into logical fallacies, that one is known as a strawman argument. Go look it up.

1) Under the parol evidence rule, contracts are assumed to be integrated. You listed some pretty common arguments to challenge that assumption to allow in parol evidence. I admit that I do not know how liberal California courts are in admitting parol evidence. Colorado and Florida are not nearly as liberal as you imply California is in this regard.

2) I did not argue that subsequent conduct is not admissible, but rather this rule of contract interpretation simply does not apply to the Constitution because the parties to that contract - the people and the government - did not change the Constitution through their acts apart from enacting amendments.

You are avoiding my point that courts are not parties to the constitutional contract any more than they are parties to any other contract brought before them in a case or controversy. Thus, prior erroneous court decisions are not evidence as to subsequent conduct of the People and the Government.

3) You contend that the "living Constitution" theory is still bound by general principles laid out in the Constitution. I have to disagree. Courts following this approach generalize rights and duties enumerated in the Constitution beyond any binding limits until they encompass the personal policy preferences of the court involved.

For example, the Supremes expanded guarantees to specific zones of privacy in the 1st, 4th and 5th Amendments to a generalized right to privacy wide enough to cover a right of privacy to kill one's own unborn children which cannot conceivably be guaranteed by the 1st, 4th and 5th Amendments. The Supremes were not limited by any constitutional principles at all in creating the right to abortion out of whole cloth.

You can make similar argument concerning the way the Supremes removed all limiting meaning from the term commerce in stretching it to cover nearly any act Congress wishes to enact.

Here is an amusing discussion of the Constitution as contract that brings in Lysander Spooner's views at:

http://www.e-thepeople.org/article/39029/view?viewtype=best&skip=10

Does originalism include the common law of contracts as of the "original" time but ignores it as later developed?

In any event, Bart seems to take originalist menu item "original intent" which I thought had long been exposed as weak even by originalists. Order two more from the originalist menu and you will get egg rolls.

Is a view that holds that the meaning of cruel and unusual, for example, can change with evolving notions of cruelty necessarily in conflict with originalism? I don't see how. What if the original intent was just this, that whatever people feel to be terribly cruel and unusual at any given time shall be unconstitutional? There are problems with that theory, but it's a plausible guess at what the original intent was. Madison was a smart man - surely if he was only seeking to proscribe that which seemed cruel at the time, he would have composed a list of punishments that were cruel by his lights. Instead, he intentionally used very vague language. A thought.

Spooner also wrote about the unconsitutionality of slavery, first in 1845 and updated after the enactment of the infamous Fugitive Slave Act of 1850. Of course the originalists of those times said he was wrong. (Some originalists of today might think he is still wrong, today.) The "Dead Hand" manipulates the Sock Puppet of originalism. Where are the MUPPETS, BEANY and CECIL THE SEASICK SEA-SERPENT when we really need them?

"Is a view that holds that the meaning of cruel and unusual, for example, can change with evolving notions of cruelty necessarily in conflict with originalism?"

Not in the least. Where the Constitution is indeterminant, it's indeterminant. It's simply determinant hugely more often than people who don't like what it says are willing to admit. We're not arguing about whether or not waterboarding is cruel and unusual, we're arguing about whether a clause giving Congress authority to regulate commerce that crosses state boundaries gives Congress authority to regulate things which aren't commerce, and which don't cross state boundaries.

Originalism is just the normal mode of understanding text, any text, applied to the Constitution. It's really only opposed by people who are determined to find a meaning they like 'in' the Constitution whether it's there or not.

I'm not a lawyer, and I don't reason like a lawyer. I haven't been trained for a substantial chunk of my life to find it reasonable to think that the legal system, by definition, can't get things wrong. Rather, as an engineer, I've been trained that the appropriate response to catching an error is to fix it, not engrave it in stone out of fear that somebody might otherwise realize that you're not perfect.

And I'm here to warn you: The further the legal system's Drunkard's walk takes the judiciary's 'Constitution' away from a lay reading of that text so many Americans hold dear, the more danger the legal system is in. Because Americans don't revere the legal system, they revere the Constitution, and they don't mean by "the Constitution" the Supreme court's accumulated precedents, they mean the written document.

You can't just treat the law as a closed system you can take wherever you want. It ultimately rests on the consent of the governed, and you can't just take that for granted.

We're heading into a dangerous time this year. The Heller case is going to test whether or not the Supreme court is capable of reading the words "right of the people", and admitting that it refers to a right, of the people.

Getting that wrong could have really, really nasty results. It could delegitimize the Court in the eyes of a large, and armed segment of society.

The stakes are high, and the consequences of the judiciary believing that they're entitled to mold the Constitution into whatever they want, the actual words be damned, are terrifying.

To my hosts and any interested onlookers, I repeat my central argument that the real problem of Originalism is that liberals erroneously take conservative arguments bearing that name at face value. Originalism isn't a logical doctrine, it's a rhetorical pose and needs to be seen and treated as such.

Bart: The Constitution is very much a contract between the people and their government.

A constitution is a set of rules created by a group holding power for the purpose of resolving conflict with and amongst those under its power in a fashion that protects and maintains its power. That's a long stretch from "an agreement the courts will enforce." Our Constitution most definitely is not a contract. "The People" ("represented" by supermajority or otherwise) are not a discrete entity which can enter into an agreement with "The Government" (itself comprised of a subset of "The People") with recourse to "The Court" (a sub-subset of "The People".)

As for the Social Contract, well, perhaps I gave you too much credit. It would be vastly more complimentary to one's image to have attempted the homonymy in question than to baldly assert something as absurd as your claim above. But, then, that's what I've been saying all along: We liberals waste our time by giving you conservatives way too much credit (and those of our hosts who suggest we just ignore you may be right after all.)

Bart: "...silly...immature...making you look even sillier."

You caught me red-handed, using TOAC 38: Become Personal, Insulting, Rude. And you respond in kind, indicating perhaps that you would not yourself be bound by this, but rather would only hold others to such standards. After all, if you affirm this is a poor way to comport oneself you would be deprived of such devastating lines as your recent "...pathetic...cowards...slink away..." offering. Which is it, are rude, personal, insulting comments fair game or foul?

Brett: Maybe I was thinking that this sophisticated notion of multiple types of laws is a crock.

It remains that you have yet to demonstrate an understanding of the difference between a statute controlling a specific behavior as contrasted with a set of rules for the just governance of a nation. Loudly proclaiming there is no difference won't make it so, nor add much to your credibility.

Brett: "...a government that won't be bound by law has no claim to so bind it's citizens."

This is the sort of thing we liberals are prone to fall for. It's a statement we all agree with, and it's one I'd love to wrangle over a six-pack of beer with any of our hosts and many of our fellow commentors. But in your mouth those words are little more than an attempt to divert the conversation away from the fact that you don't seem to know municipal street sweeping code from the complex net of relations in which such code rests.

It seems to me that the promise of originalism is identifying constitutional meanings that are sufficiently objective that they can be established to the satisfaction of people who don't like the outcomes. To the extent that this promise cannot be fulfilled (and, without having read the articles in question, I agree that there is a serious possibility that it cannot be), then it seems to me that the question becomes one of the legitimacy of judicial review. As reflected by the debate above, issues of constitutional meaning in most cases are broad arguments about history, philosophy and values which are largely indistinguishable from other types of political arguments. It therefore seems more appropriate that they take place forthrightly in the political sphere, rather than using the courts to fight a proxy war over these points.

Of course, there are some constitutional provisions, mostly relating to structure, that are sufficiently definite that even people who don't like their outcomes will acknowledge their meaning. Hence Professor Levinson's opposition to various constitutional provisions. And there may be an argument for preserving judicial review as to those provisions, even if not as to others.

With a nod to Professor Tamanaha, I found myself reading this morning from Robert M. Howard's "An Original Look at Originalism" (36 Law & Soc'y Rev. 113), from which:

Multivariate analyses show that legal arguments as to text, and particularly intent, have little impact on the votes of even those Justices alleged to be originalists. Instead, ideology continues to explain their decisions.

This would certainly make the kind of true-believer arguments exemplified by certain of our commenters just a touch out of place, nor do I think this is entirely out of step with my observation that the current state of Originalism "...has been a matter of vocal judges polishing themselves with Originalism(tm) to add a little lustre to their position..."

Originalism is a red-herring. Both sides will claim it when they think they can. Neither side can be demonstrated to rely on it to reach decisions at odds with their ideology.

Bart: The Constitution is very much a contract between the people and their government.

A constitution is a set of rules created by a group holding power for the purpose of resolving conflict with and amongst those under its power in a fashion that protects and maintains its power.

The Constitution was not imposed by fiat the way living Constitution decision are. The Constitution was modified over several months by debate among all the political factions and approved by a supermajority of the People's representatives.

I hire someone to clean my car, paying her in advance and she agrees to clean my car. But I then decide I don't want my car washed (for any number of reasons) and drive off, telling her to keep the money. What am I bound for under that contract? Am I bound NOT to let someone else wash my car? Can she sue me for breach of contract?

How does a constitution differ from a contract? Let me count the ways.

Robert M. Howard's "An Original Look at Originalism" (36 Law & Soc'y Rev. 113), from which:

Multivariate analyses show that legal arguments as to text, and particularly intent, have little impact on the votes of even those Justices alleged to be originalists. Instead, ideology continues to explain their decisions.

The fallacy of using this approach to determine whether a justice is applying originalism is that it does not establish a base line of what the text or original intent require and then measure how closely a justice follows that baseline.

Rather, the baseline used in this study is not a baseline at all but rather the wildly varying arguments of litigants as to what particular text means.

For example, the litigants in the current Second Amendment case have wildly divergent opinions as to what the text of the Second Amendment means. Only one can be right. But Howard's study would measure how faithfully each justice hewed to the arguments offered, even if they have very little to do with the actual meaning of the text.

::begin collegial banter mode::Heya, Bart, if you want to read Howard's study in full, let's; it's only 25 pages on lexis. At that point it could be fun to pursue the matter at greater depth. We might even get one of the hosts to open a thread specifically for it, if we can agree in advance to Marquess of Queensberry rules of engagement or some such.::end collegial banter mode::

::resume adversarial mode::Your comments about the viability of Howard's methods are rather speculative, aren't they? And, for the record, I'm pretty sure it's "Shag" with a "gee" rather than "Shaq" with a "kyoo" as you keep spelling it.

Yes, Robert, the "g" is indeed the missing link. I am not over 7 feet tall and can't dunk. (Some might suggest that I can't "shag" any more either; but, off hand, that's personal.) I used to be 5' 8 1/2" tall (or short) measured in my bare feet (while using my socks for non-originalist puppeteering), but in my 78th year my spine has compressed somewhat but I've still got plenty of backbone. But what's in a name: "An originalist by any other name is Dead Hand Sock Puppet." Long live the Constitution and let it live with us.

As reflected by the debate above, issues of constitutional meaning in most cases are broad arguments about history, philosophy and values which are largely indistinguishable from other types of political arguments. It therefore seems more appropriate that they take place forthrightly in the political sphere, rather than using the courts to fight a proxy war over these points.

In the long run, the debate does take place in the political sphere. That's pretty much what Bruce Ackerman's theory of "constitutional moments" tells us, as does the Balkin/Levinson theory of partisan entrenchment.

The good thing about having courts, rather than legislatures, make the decisions in the short term is that we mitigate the effects of majority tyranny. Judicial decisions serve two important purposes. First, because the judiciary issues written, considered opinions, the political system has the opportunity to deliberate (in the best sense of that word) on the issues. Second, because the judiciary proceeds rather slowly, we gain the benefits of republican government -- filtering the issue through various layers prevents decisions from being made in haste. By forcing the changes to take place over time, we assure that the new understanding represents what Madison called the "permanent and aggregate interests" of the country.

We're heading into a dangerous time this year. The Heller case is going to test whether or not the Supreme court is capable of reading the words "right of the people", and admitting that it refers to a right, of the people.

Getting that wrong could have really, really nasty results. It could delegitimize the Court in the eyes of a large, and armed segment of society.

The good thing about having courts, rather than legislatures, make the decisions in the short term is that we mitigate the effects of majority tyranny.

As opposed to a tyranny of an unelected five?

Judicial decisions serve two important purposes. First, because the judiciary issues written, considered opinions, the political system has the opportunity to deliberate (in the best sense of that word) on the issues.

This argument only applies to interpretation of statute or regulation which may be reversed by further legislation. Judicial decisions applying their view of the Constitution all to often takes policy issues away from the elected branches and therefore the People.

Second, because the judiciary proceeds rather slowly, we gain the benefits of republican government -- filtering the issue through various layers prevents decisions from being made in haste. By forcing the changes to take place over time, we assure that the new understanding represents what Madison called the "permanent and aggregate interests" of the country.

Our system of checks and balances between the elected branches requiring an effective super majority to act slows down the process and stops the tyranny of the passing majority.

Courts were never intended to set policy in our Republic. Rather, they were designed to be the weakest branch whose role was limited to applying the law as referees.

We're heading into a dangerous time this year. The Heller case is going to test whether or not the Supreme court is capable of reading the words "right of the people", and admitting that it refers to a right, of the people.

Getting that wrong could have really, really nasty results. It could delegitimize the Court in the eyes of a large, and armed segment of society.

We're quaking in our boots.

If you are a Dem who is living for a Dem win in the fall, I would be extraordinarily concerned how the Court rules in Heller. A decision for DC writing the right of the People to keep and bear arms out of the Constitution in the Summer will all but guarantee a GOP landslide in the Fall as all the Reagan Dem gun owners stampede to McCain ala 1994.

I value my right to keep and bear arms far more than any transient political victory in some election and hope that the Supreme interpret the Second Amendment as written.

Let's discuss the originalist view of the requirement that the President be a "natural born" citizen. (I personally don't think this was aimed at disqualifying C-section births. But I have some doubts as to "test-tube babies," "in-vitro fertilization and cloning.) Today's NYTimes has an extensive discussion of this requirement as it relates to John McCain's birth in the Panama Zone. Is McCain McAble to qualify?

I asked about the originalist take on "natural born citizen" Take a look at

http://www.usconstitution.net/consttop_citi.html

for the effect of certain statutes on the meaning. If the text of the Constitution was so clear, why the need for these statutes? By the way, under the originalist view is it permissible for Congress to define what constitutes "commerce" for things that were not considered by some originalists (e.g., Justice Thomas) as constituting "commerce"?

Bart, your side is never worse on constitutional questions than when you pretend that the Constitution is clear when it isn't.

I understand the serious critique that sometimes liberal judicial philosophies allow judges to say the Constitution requires whatever they want it to.

But the fact is, the Constitution is not a clear document in many respects, nor was it intended to be. I think the framers fully expected that we would still be arguing about the meaning of terms like "due process" and "cruel and unusual punishment".

And while I have no quarrel with looking to original intent or original understanding to resolve such ambiguities, most of the time, it really isn't as clear-cut as conservatives claim it is.

Your discussion of "natural born" is a good example of this. We do know, generally, that the framers distrusted "foreign" rulers. But that begs the question-- would the framers have viewed a US citizen born in a foreign country as a "foreign" ruler to be distrusted? It happens that with respect to John McCain, he spent most of his life here in the US despite his birth in the Canal Zone. But one can imagine people who grew up in another culture and with divided loyalties despite being nominally US citizens at birth and having lived in the US as an adult. (Indeed, some of the right-wing's arguments about Obama being educated overseas get to this issue.) Would the framers have considered such a person to be "foreign" and thus unsuitable for the Presidency?

One of the fundamental points where conservative judicial philosophies get tripped up is this belief that the cases are easy and the liberals are just getting them wrong. No, the cases aren't easy. They are tough. And that's why very intelligent people-- far smarter than you or I-- who have sat on this nation's highest court have disagreed on their resolution.

The Constitution's text is generally clear apart from some anachronistic language.

For example, the due process and cruel and unusual punishment clauses were invitations to the judicial branch to set court procedures and punishments, which were traditional judicial functions. The terms are clear and easily understandable even though the scope of power they grant the courts is broad. The only problem was when the courts ignored the plain meaning of the term process to invent the concept of substantive due process, which is a contradiction in terms.

I agree with you that many cases are not easy. However, that has more to do with deciding how to apply an understandable provision in the Constitution to a novel set of facts. In this case, it is the better practice to realize that the Constitution was not meant to resolve many policy disputes and the courts should defer to the democratic branches on close questions.

"One should approach the Constitution as you would any other contract."

Really? Then, I guess the Constitution is entirely invalid. I'm fairly certain that "parties" cannot enter an "agreement" that is binding on unborn parties. What about intent to be bound? Or, is the Constitution binding on us by some theory of tacit consent, or estoppel?

I'd imagine you'll seek to defend the validity of the Constitution by appealing to the "democratic process" by which it was adopted. But really, how valid is a "democratic process" that excludes the majority of the population? If the Constitution is just like "any other contract," as you claim, then what about invalidity due to duress? Why couldn't women or African Americans argue that they never agreed to the Constitution?

In short, I think it is very problematic to argue that "One should approach the Constitution as you would any other contract." Even if it is a "contract," it is clearly a very unique type of contract, and I'm not sure that the principles of contract law really account for all the features and functions of a constitution.

For example, as I've illustrated above, there is the problem of binding parties who did not agree to the Constitution, or who were not even alive when it was written. Contract law principles can't explain this feature of a constitution, can they?

The non-anachronistic portions of the Constitution in fact contain MANY ambiguities.

For instance, we constantly argue the meaning of the words "commander-in-chief" around here. And it's perfectly clear why-- because the words "commander-in-chief"-- as well as the rather elliptical and sometimes contradictory things that the framers said about executive power-- don't enlighten us very much about the division of power between the President and the Congress.

I pointed out due process and cruel and unusual punishment. But the bill of rights is littered with ambiguous terms. What is "speech"? What sorts of conduct constitute "speech". Does "no law" really mean "no law"? Does "of the press" have any independent meaning? What is "an establishment of religion"? What happens when the establishment and free exercise clauses are in tension? What does the prefatory clause to the Second Amendment mean? What does "arms" mean? Do the people's "persons, houses, papers, and effects" extend to other things that seem analogous? What is the right to confront witnesses? When can evidence be admitted in a criminal trial without confrontation? What is an excessive fine or bail? What unenumerated rights are protected by the Constitution? What powers are reserved to the states by the Tenth Amendment, and is it an independent constraint on federal power?

The Constitution is full of ambiguous phrases. Then, you get the fact that we are applying something written over 200 years ago to modern problems. And yet your side of this argument babbles on incessantly about how easy the cases are and how unprincipled anyone who disagrees with you is. It's all BS.

I wouldn't say it was "full" of them, but it has them. It also has not particularly ambiguous phrases, like "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;", or "n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed..."

And yet these gems of clairity ALSO turn 'ambiguous' when their clear meaning gets in the way of what the government wants to do. And so, in the name of regulating interstate commerce, Congress regulates things which are neither commerce nor interstate. And so, I could be put away for the rest of my life without a jury trial, if the prosecutor just brings 150 counts against me, and commits to asking for no more than 364 days in prison for each.

Let's not pretend this is about ambiguous phrases. It's a two step proces:

1. We can interpret ambiguous phrases however we like.

2. EVERYTHING is ambiguous.

It's that second step that pisses me off, though I think even the first goes beyond the bounds of decency; Just because something is ambiguous, doesn't mean it's an empty vessel.

What we need are more "natural born" constitutional scholars. No clones, or clowns, need apply. Let's send out a constitutional posse to find our "Lost Constitution." And hurry back. Keep it simple - and unambiguous.

For example, there is nothing ambiguous about commander in chief of the Army, Navy and Militia. A commander in chief is simply the ranking military commander. As such, the President can exercise all the powers normally exercised by the ranking military commander.

As Brett noted, ambiguity is assigned to various constitutional terms in order to skirt the generally accepted meaning of those terms. The "controversy" about the meaning of CiC falls into that category. The simple fact is that many here do not want Mr. Bush to exercise exercise all the powers normally exercised by the ranking military commander, so they try to muddy up an otherwise straight forward term.

Bart: ...powers normally exercised by the ranking military commander...

TOAC 6: Postulate What Has To Be Proved, a neo-con fave. At issue is what powers are allowed, i.e., to be "normally exercised by", the ranking officer in a democratically elected republic such as ours where the national executive also wears this C-in-C hat. You and Yoo and Cheney and Rove would like to pretend this C-in-C hat trumps the rest of the Constitution (and claim the Constitution says so?)(despite the fact that the sine qua non of the Constitution was the avoidance of despotic tyranny arising from concentrated power in the hands of a monarch, elected or otherwise?) More responsible analysts know otherwise. Having seen that there is no credible argument to support your belief in unfettered executive power, you and yours like to say, "Well, it just is."

Dilan: "...your side of this argument babbles on incessantly about how easy the cases are and how unprincipled anyone who disagrees with you is."

The mistake is to think any of the actual analysts on the other side believe such. It's one thing for a Brett or even a slightly more knowledgeable and articulate Bart to take such positions at face value; that's what true believers do. But it's foolish to think the promulgators of this rhetoric actually believe it; if so Scalia would follow Originalism even when it leads to results he doesn't like.

Again and again and again, the problem with liberals is that they take conservative rhetoric at face value. The conservative claim that such issues are simple and clear is facially absurd. It is, in essence, a kind of appeal to authority, where the speaker claims authority to interpret matters their way and tries to preemptively invalidate any other interpretation. Seen for the "chilling" maneuver it is, we can, and should freely ignore such nonsense.

For example, there is nothing ambiguous about commander in chief of the Army, Navy and Militia. A commander in chief is simply the ranking military commander. As such, the President can exercise all the powers normally exercised by the ranking military commander.

Ahhh, IC. Thanks for the wonderful 'insight'. The "Commander-in-Chief" is the person who can exercise "all the powers" of the "Commander-in-Chief". Turtles all the way down, I tellya....

Of course, unanswered is the question of whether he can command his subordinates to violate a law passed by Congress. If he has some independent power to do so, it would seem to have to logically arise from some power bestowed on him other than simply being the primogenitor of "commands".

You really make yourself look foolish by citing these references which have nothing at all to do with my arguments.

Bart: ...powers normally exercised by the ranking military commander...

At issue is what powers are allowed, i.e., to be "normally exercised by", the ranking officer in a democratically elected republic such as ours where the national executive also wears this C-in-C hat.

There are several centuries of Anglo American history demonstrating the powers of a military commander. A military commander is the closest thing to God on Earth and pretty much controls all decision making concerning his command.

You and Yoo and Cheney and Rove would like to pretend this C-in-C hat trumps the rest of the Constitution (and claim the Constitution says so?

I sure hope you study for exams with more comprehension than you read my posts, which repeatedly argue that Congress' Article I powers trump the President's general Article II CiC power in every case. Where I disagree with most here is the scope of those Article I powers. I and Article I state that they are limited to enumerated powers. Some here think that there are implied powers lurking around which no one else has found to date.

In working on the Seminole case, I had my advocate cap on and relied upon prior case law which held that the Eleventh Amendment established a state sovereign immunity which really is not in the text of the Amendment.

If I were a justice on the Supreme Court, I would have voted to reverse the erroneous case law upon which I was relying.

However, the Supremes do not like to reverse themselves and my argument to the 11th Circuit (which the AG's office used in their appeal to the Supreme Court) prevailed.

Bart, I fully understand your desire to avoid analysis of your tactics in any concrete, easily referenced terms, be they Schopenhauer's TOAC or otherwise. It remains that you frequently offer as settled precisely that which is in question, a shopworn tactic of the intellectually dishonest. Since you choose to provide us a never ending stream of utterances with which we can practice spotting, and damning, such illegitimate maneuvers, can I really be blamed for using you as a training dummy? (And if you really just wanna play the dozens w/r/t reading comprehension, let's go one more round on your efforts to find within the four corners of the MCA protections for the innocent against "errors" of "determination of status". We've been waiting since October 2006 for your answer on that one. Are the words just too big for you?)

Bart: "A military commander is the closest thing to God on Earth and pretty much controls all decision making concerning his command."

Limiting the powers of any such "God on Earth" is the overarching goal of the Constitution, despite your wishes and vain protestations otherwise. You also attempt a fast one with "...concerning his command...", which, again is precisely what is at issue: what properly falls within the domain of the C-in-C's command? Under your "God on Earth" theory (quaint, that) it would be everything. In a Constitutionally founded republic such as ours there has to be something perhaps a little more narrowly tailored to a specific goal. More concretely and by way of example, trial by military commission might arguably make sense and be just when used at the battlefield, when and where there is no access to the normal trappings of society and proper courts. But defining the whole globe a "battlefield" in a "war" on an abstract noun does not actually suffice to grant legitimacy to, say, such a commission held in a leased area of a neighboring island, far far from any battle and in shouting distance of our sitting justices. That's just one little example, but I'm sure you get the point.

You and yours would like to legitimize the monarchy of King George, first of the grand neo-con dynasty, crowned in the flames of nine-one-one. Some of us continue to think America is built on principles intended to avoid such.

Arne: "...Scalia would...follow 'textualism' to the inevitable conclusion that the Eleventh Amendment, by its own terms (and words) doesn't ban suits against a state in federal court against the state's will."

Bart: "...relied upon prior case law which held that the Eleventh Amendment established a state sovereign immunity which really is not in the text of the Amendment..."

Is Bart agreeing here that Scalia failed to hew to the "textualist" line so popular amongst true-believers? Also, anyone got a citation I can plug into lexis to substantiate Bart's role in what was presented to the 11th circuit?

And maybe I am just slow today, but don't the literal words of the amendment clearly prohibit federal courts from hearing cases between a state and someone not a citizen of that state? That is, I, as Californian, can't sue the state of Colorado?

In working on the Seminole case, I had my advocate cap on and relied upon prior case law which held that the Eleventh Amendment established a state sovereign immunity which really is not in the text of the Amendment.

"res ipsa loquitur"

JOOC, though: Where was it, then? Particularly since the Constitution itself actually explicitly gave the federal courts the power to hear such suits.... Is there some other "constitution" in your back pocket?

And maybe I am just slow today, but don't the literal words of the amendment clearly prohibit federal courts from hearing cases between a state and someone not a citizen of that state? That is, I, as Californian, can't sue the state of Colorado?

That's not at issue. Where it gets complicated is that citizenz of other states could (pre-Eleventh) sue a state in federal court on diversity grounds or on "federal question" grounds. On the basis of the text itself, both types of suits are barred by the Eleventh, by citizens of another state, but citizens of the same state could sue based on "federal question" jurisdiction (but obviously not on the basis of diversity jurisdiction).

Some have said that this obvious disparity in treatment of citizens based on their state of residence shouldn't be allowed, and that of course, the Eleventh meant that no citizen could sue another state on "federal question grounds" or their own state, despite the fact that the text does not say the latter.

Others might suggest that the original impetus for the Eleventh, arising from a case in diversity under common law, was only intended to strip diversity jurisdiction with the states as a defendant.

The third camp (which includes Scalia) suggests some hidden "principle" in the Constitution of "state's rights", and that the federal gummint has no power (or restricted power) to hale a state into federal court against its will (the "sovereign immunity" argument) ... nevermind that it is a citizen of that state doing so and not actually the federal gummint. I'm of the opinion that we fought a revolution to depose the sovereign, and that such immunity has no place in our scheme of gummint.

A fourth school, literally textualist, might say that we need to take the Eleventh Amendment as it stands, and allow for federal question suits against a state in federal court when initiated by its own citizens, and bar those from citizens of other states (I guess perhaps residency might have its privileges, eh?), and just write of the disparity as the result of badly framed law that is nonetheless the law.

Thought the whole point was to preclude exploitation of diversity to get otherwise non-justiciable claims into court, while leaving the state- citizen- takes- state- to- the- next- level option intact.

Arne: "...some hidden "principle"..."

Something like "elan vital", that which drives a living constitution? ;) Once again, that's my central point, that folks like Scalia use words like "Originalist" or "Textualist" quite cynically and instrumentally and it's a waste of our time and energy to try to "academically dispute" that which they only offer as convenient cover when it suits them. (Yes, poking fun at the true-believers is a similar waste of time.)

Not to prolong this discourse and take Robert away from his studies, I just received an H-Net Book Review by Kevin R. C. Gutzman of Alan Gibson's "Understanding the Founding: The Crucial Questions" part of the "American Political Thought Series", University Press of Kansas, 2007. The review starts with this headline:

"Leading Schemes of Constitutional Interpretation Explored"

Those interested may find the review at H-Law@h-net.msu.edu by linking. The review was posted Feb., 2008. Perhaps the book may be up to Originalism 501. Maybe Legal History Blog will provide direct links.

I have a couple of new papers up on SSRN applying my brand of textualist semi-originalism to the Equal Protection Clause: see here and here. I mentioned them briefly here, during the Balkin-Strauss debate.